Under the North African country’s criminal code, those found guilty of consensual same-sex acts can be punished with up to three years in prison.
The men concerned, who were sentenced to a year in prison since a lower court rejected their first appeal in July 2020, are appealing to the country’s top court to overturn “a cruel sentence that violates international standards”, said their lawyer Hassina Darraji.
She said the appeal could take months but that if it succeeds, it could create a legal precedent as well as reverse their sentence.
“Our goal is to do away with Article 230,” the section of the penal code, dating back to French colonial times, which outlaws homosexual acts.
The men, who are currently free, were found guilty over alleged acts in the Kef, a northwestern region of Tunisia, despite a “completely empty case with no legal proof”, Darraji said.
She said they had been condemned after they refused to undergo anal examinations, seen by judges as proof of their guilt.
The United Nations Committee Against Torture has condemned Tunisia’s use of such tests.
Lotfi Ezzedine, a lawyer from national anti-torture association INPT, said anal examinations in such cases were “a form of torture” and that Tunisia had committed in 2017 to scrapping them — but without saying when.
Ezzedine also called for a debate on scrapping Article 230, which he says criminalizes “personal and consenting sexual choices”.
“The day we have a parliament, this should be one of the first issues on the table,” he said.
Tunisia’s parliament has been suspended since July 25, when President Kais Saied also sacked the government and seized a range of powers.
Saied has said he is opposed to the decriminalization of homosexuality but also to jail terms based on sexual orientation.
Badr Baabou, head of LGBT rights group Damj, praised the men for their courage and they now had “no work and nowhere to live”.
He said some 150 people are currently in Tunisian prisons under Article 230.